Scalia and the Philosophy of Law - PeachParts Mercedes-Benz Forum

kerry · #1 10-31-2005, 05:16 PM

http://www.firstthings.com/ftissues/ft0511/reviews/scalia.html

Since the available philosophies of law have their problems, we'd better return to theology to make sense of law. He'd be right at home in Islamic jurisprudence.

Botnst · #2 10-31-2005, 07:24 PM

Golly, what a witty and wonderfully reasoned book review. I read the whole damned thing wondering where Scalia was mentioned and didn't see it until I looked at the very end. Then, "Of Course!"

To my knowledge, Scalia has not referenced the Bible as the basis for any legal opinion, has he? If so, that would fly directly in the face of his argument that the SC should stick within American jurisprudence for it's opinion. I saw an excellent discussion on C-SPAN involving Scalia and Souter (I think) in which they sparred over whether foreign legal opinion should be used in deciding SC cases. Excellent, thoughtful arguments from both sides. I went from being strongly convinced by one Justice to strongly cconvinced by the other Justice. Wonderful arguments by brilliant thinkers. I loved it. The world would be a lesser place for the loss of either of those men.

B

boneheaddoctor · #3 10-31-2005, 07:35 PM

Kennedy and Ginsberg rely heavily upon the ramblings of Lennin.

Botnst · #4 10-31-2005, 07:46 PM

Quote:

Originally Posted by boneheaddoctor

Kennedy and Ginsberg rely heavily upon the ramblings of Lennin.

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Huh?

boneheaddoctor · #5 10-31-2005, 07:49 PM

Quote:

Originally Posted by Botnst

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Huh?

If Scalia relies on the Bible as the left wants to believe then Kennedy and Ginsberg rely heavily upon the writings ov Lenin....You know the guy embalmed in Red square.

kerry · #6 10-31-2005, 07:52 PM

I agree the review is well written and he points out important problems. However, to throw in medieval jurisprudence at the end as if it could solve the problems he points out without having greater problems than the alternatives he criticizes is only going to appeal to a small cadre of conservative Catholic legal theorists and the vast world of Islam. But he knows he's preaching to the choir.

I'd like to read the opinions that quote Lennin.

Botnst · #7 10-31-2005, 07:59 PM

Quote:

Originally Posted by kerry edwards

I agree the review is well written and he points out important problems. However, to throw in medieval jurisprudence at the end as if it could solve the problems he points out without having greater problems than the alternatives he criticizes is only going to appeal to a small cadre of conservative Catholic legal theorists and the vast world of Islam. But he knows he's preaching to the choir.

I'd like to read the opinions that quote Lennin.

I think ol' Dr Bone is guilty of one of those non sequitar thingies.

B

peragro · #8 10-31-2005, 08:22 PM

Quote:

Originally Posted by kerry edwards

I'd like to read the opinions that quote Lennin.

It was a 2000 case I believe. The case once again made prostitution illegal in DC. The majority opinion cited Lennon with regard to "all you need is love".

boneheaddoctor · #9 10-31-2005, 08:51 PM

My point being the Liberals paranoia about anyone conservative on the courts being so extreme they look for any religious guidance to fault them on.....yet give the Uberliberals a total pass on the very anti-american anti-democratic decisions to legislate from the bench......E.G. ....Kennedy and Ginsberg....something to think about...

koop · #10 10-31-2005, 08:52 PM

Quote:

Originally Posted by w126

BHD got me thinking about Lenin and the recent recent property rights case, (Kelo v. City of New London) -- so I searched around the 'net and found this:

In a recent Supreme Court decision, Justice John Paul Stevens wrote, "If the peasants sow the fields poorly, they should be helped —and this particularly applies to the poor peasants— by means of collective cultivation of the large estates. There is no other way of helping the poor peasants." Therefore, "The landed estates must be confiscated immediately."

Actually, that was Vladimir Lenin writing in an issue of the communist publication Pravda on June 2, 1917.

This comes from right wing sites, so would have to do some more research for validity.

The full quote of the second paragraph reads

"Actually, that was Vladimir Lenin writing in an issue of the Communist publication Pravda on June 2, 1917. I've compiled a small list of quotes for use in this article, but at times it can be hard to remember who used which ones. It doesn't help that Lenin and Justice Stevens – the oldest member on the court – are roughly the same age. Rest assured that while quotes may be at times confused, no one's beliefs will be misrepresented."

In other words, no Stevens didn't right it.

Kuan · #11 10-31-2005, 09:06 PM

It's odd how, say, Scalia and Thomas have such different beliefs about the ontological status of "the law," yet can come to the same decision so many times. That just busts Smith's "common-law-sans-brooding-omnipresence" theory doesn't it? I don't quite get what he means though when he talks about the conversion of law to common law.

Scalia's main objection is to Smith's assertion that speakers have intentions, and that different people can interpret those intentions to mean different things. What makes it even more confusing is when Smith tosses in Husserl like allegations about language. Whereas Smith spells intentionality (lower case i) he uses it as Husserl does; Intentionality (upper case I). When Husserl talks about Intentionality he means that assertions have an aboutness to them. It's never just a statement.

How do I dare put words in Smith's mouth? Because of this:

Quote:

“Textual meaning,” Smith says, “must be identified with the semantic intentions of an author—and . . . without an at least tacit reference to an author we would not have a meaningful text at all, but rather a set of meaningless marks or sounds.” “Legal meaning depends on the (semantic) intentions of an author.”

And because of what I believe meaning to be, and because in the realm of law we're concerned with Truth. Suppose Smith wrote something:

The cat is on the mat

Smith believes that the above is meaningless unless the (semantic) intentions of the author are known. Suppose we know that he is asserting that there exists a cat, there exists a mat, and that the cat is somehow sitting on top of the mat. That statement satisfies the following:

1) It refers
2) It means something (at least in the mind of Smith)
3) Smith intended for it to mean something
4) It is about something

The first three conditions have nothing to do with truth. For all we know, Smith may be trying to mislead us. But since we're talking about the law and Truth, Smith's assertion that the cat is on the mat must be necessarily true in the context of the law. Hence the fourth condition is also necessary, and that is why I believe that Smith is tacitly borrowing from Husserl in order to bolster his case.

I also think Scalia is mistaken with his counterexample to Smith's "R-E-A-L" example. Scalia believes that native speakers of a language can easily come to agree upon meaning.

Quote:

Two persons who speak only English see sculpted in the desert sand the words “LEAVE HERE OR DIE.” It may well be that the words were the fortuitous effect of wind, but the message they convey is clear, and I think our subjects would not gamble on the fortuity.

Here Smith offers a variation of Quine's "gavagai" thought experiment in which an explorer arrives on an uncharted island and encounters some natives. The native points to a rabbit and says "gavagai." The explorer points to the rabbit and says "gavagai." One would assume that gavagai would mean rabbit, but Quine offers up a difficulty. The native may have heard a rustling in the bushes a while ago and may take the explorer's utterance to mean something like "ah, that was a rabbit," or perhaps the native sees some rabbit flies which go unnoticed by the explorer. Nevertheless, the whole scenario provides a very compelling reason to argue for the indeterminacy of translation. (Quine's own words)

I believe that if Smith had read Quine that he would have come up with a better argument than his "R-E-A-L" example. Scalia's objection does not hold up to Quine's original example. In fact, not many objections do. Even if we do overcome these difficulties as set forth by Quine, we're faced with the monumental task of being absolutely sure that you and I both, understand, mean, refer, and have the same intentions when we say something like "the cat is on the mat."

In the end, it all boils down to this: Smith offers up objections claims that the law cannot possibly work whereas Scalia says that the law works despite Smith's criticisms. In a rather backward sort of way, Scalia seems accepting of the law as fact, and in a rather twisted sort of way, points to Smith's objections as wishing for a deity, as if that would solve all of Smith's problems!

kerry · #12 10-31-2005, 09:24 PM

Quote:

Originally Posted by Kuan

It's odd how, say, Scalia and Thomas have such different beliefs about the ontological status of "the law," yet can come to the same decision so many times. That just busts Smith's "common-law-sans-brooding-omnipresence" theory doesn't it? I don't quite get what he means though when he talks about the conversion of law to common law.

Scalia's main objection is to Smith's assertion that speakers have intentions, and that different people can interpret those intentions to mean different things. What makes it even more confusing is when Smith tosses in Husserl like allegations about language. Whereas Smith spells intentionality (lower case i) he uses it as Husserl does; Intentionality (upper case I). When Husserl talks about Intentionality he means that assertions have an aboutness to them. It's never just a statement.

How do I dare put words in Smith's mouth? Because of this:

And because of what I believe meaning to be, and because in the realm of law we're concerned with Truth. Suppose Smith wrote something:

The cat is on the mat

Smith believes that the above is meaningless unless the (semantic) intentions of the author are known. Suppose we know that he is asserting that there exists a cat, there exists a mat, and that the cat is somehow sitting on top of the mat. That statement satisfies the following:

1) It refers
2) It means something (at least in the mind of Smith)
3) Smith intended for it to mean something
4) It is about something

The first three conditions have nothing to do with truth. For all we know, Smith may be trying to mislead us. But since we're talking about the law and Truth, Smith's assertion that the cat is on the mat must be necessarily true in the context of the law. Hence the fourth condition is also necessary, and that is why I believe that Smith is tacitly borrowing from Husserl in order to bolster his case.

I also think Scalia is mistaken with his counterexample to Smith's "R-E-A-L" example. Scalia believes that native speakers of a language can easily come to agree upon meaning.

Here Smith offers a variation of Quine's "gavagai" thought experiment in which an explorer arrives on an uncharted island and encounters some natives. The native points to a rabbit and says "gavagai." The explorer points to the rabbit and says "gavagai." One would assume that gavagai would mean rabbit, but Quine offers up a difficulty. The native may have heard a rustling in the bushes a while ago and may take the explorer's utterance to mean something like "ah, that was a rabbit," or perhaps the native sees some rabbit flies which go unnoticed by the explorer. Nevertheless, the whole scenario provides a very compelling reason to argue for the indeterminacy of translation. (Quine's own words)

I believe that if Smith had read Quine that he would have come up with a better argument than his "R-E-A-L" example. Scalia's objection does not hold up to Quine's original example. In fact, not many objections do. Even if we do overcome these difficulties as set forth by Quine, we're faced with the monumental task of being absolutely sure that you and I both, understand, mean, refer, and have the same intentions when we say something like "the cat is on the mat."

In the end, it all boils down to this: Smith offers up objections claims that the law cannot possibly work whereas Scalia says that the law works despite Smith's criticisms. In a rather backward sort of way, Scalia seems accepting of the law as fact, and in a rather twisted sort of way, points to Smith's objections as wishing for a deity, as if that would solve all of Smith's problems!

I've heard Thomas called a natural lawyer but Scalia's own judicial philosophy is unclear to me. Given the character of the journal in which the review is written, I took Scalia to be not so much twisting Smith's argument, as asserting that a meaningful understanding of law requires a deity. This seems very close to traditional natural law theory. Is Scalia's 'original meaning' just one component of a democratic theory of law, whereas in his broader judicial philosophy he is a traditional Catholic metaphysician?

Kuan · #13 10-31-2005, 09:51 PM

Your thoughts about Scalia and the deity are similiar to mine. Smells of an old argument rehashed.

Anyway from what I read in that article, Scalia seems to believe in law by the letter, and that there is only one interpretation. Law, or anything for that matter, is what the writer intended and it's really not that difficult to figure out what they meant. Is that a school of thought in the Philosophy of Law?

Thomas is just a moralist on his high horse who believes that all men are created, think, eat, drink, alike.

Botnst · #14 10-31-2005, 09:54 PM

Quote:

Originally Posted by Kuan

...Thomas is just a moralist on his high horse who believes that all men are created, think, eat, drink, alike.

Yeah, like, "all men are created equal." Silly stuff for an adult to live and die for.

Bot

Kuan · #15 10-31-2005, 10:06 PM

Quote:

Originally Posted by Botnst

Yeah, like, "all men are created equal." Silly stuff for an adult to live and die for.

Bot

To be more appropriate, they died for the rights endowed upon man by their creator, not the belief that all men are created equal.

We are different, you and I, but we're bound by the same constitution, which, according to Clarence Thomas, is a product of a Universal moral code. He's a moral absolutist and calls upon a higher power to justify his beliefs. Scalia just looks at the bloody thing and calls it like he sees it.